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3.45 pm

Another conflict of interest is dealt with by my amendment No. 121. Members will be familiar with the issue, which has run throughout the course of the Bill. When the Bill was first published, 28 June 2005 was not mentioned—the date was inserted in the other place in Grand Committee. The purpose of this part of the Bill is to give people the right to argue that unlawful works should be removed. That is important in the context of the Countryside and Rights of Way Act 2000, which has been mentioned today.

One of the Government’s achievements has been the gift to working people of the right to roam freely over open country. All over the country, however, there is unlawful fencing. As I understand the present position, people can make an application for unlawful works and fencing erected after 28 June 2005 to be removed. I know from my direct experience, however, that there is fencing all over the country that precedes that date. For the life of me, although I know why the date of 28 June 2005 has been inserted, I do not understand the principle behind it.

It is important that the Government are clear about their intent. It has taken landmark legislation to allow people to walk freely in the countryside. That access is being restricted by unlawful works. It cannot be right that people such as me can apply for those unlawful works, which prevent access to parts of the country, to come down if they were erected after 28 June 2005, but not if they were erected prior to that. The Bill has been improved, and its balance is generally right. On that aspect, however, the Government have got it wrong—badly wrong.

David Maclean: I support my hon. Friend’s amendment No. 114.

In relation to Warcop, before I get too far out of order, Mr. Deputy Speaker, may I pay tribute to the wonderful job the Ministry of Defence does in managing that range for wildlife purposes? When I hear people whinge about the MOD owning land and
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so on, I know that the best places for wildlife protection in my constituency are on the live firing ranges at Warcop, with tanks blasting off 120 mm shells a few yards away from where wildlife is happily existing. I am happy to put that on record.

There is no great issue of principle between us on what we are seeking to achieve. I pay great tribute to the hon. Member for Sherwood (Paddy Tipping), and when we discussed the matter in Committee, I could not help but conclude that when he thinks of commons it is of the Wimbledon commons of this world and smaller village greens, where it would be absolutely atrocious for people to put up miles of barbed wire fencing. I, however, tend to think of 10,000 acres of moorland in Cumbria, where we sometimes need a wee bit of fencing.

Paddy Tipping: I think of those wild open spaces in the north Pennines. That is why I praise the Government for what they have done to allow people like me, from ordinary backgrounds, to experience it after a century of campaigning. I want that to continue; I do not want unlawful fencing to stand in its way.

David Maclean: I entirely agree. We do not want unlawful fencing. We do not want those wild open spaces to be cordoned off so that people cannot use them, we do not want miles of barbed wire so that people get tangled up in it—but we do not want people to fall down holes.

The simple examples that I shall give the Minister are not original; I gave them in Committee. But if the Bill were already law, by this time of the year the Minister would probably have 1,000 applications on his desk from Cumbria alone. Why? If I read the law correctly, at this time of year the bulk of those applications would be for permission to put up a few gates for a few days—a few weeks at most—to separate the sheep from the lambs. Sheep may now be out on the fells with the lambs. They may be nearer to the in-bye land. Farmers will not drive them all into the sheds to separate them; what they will do, at times, is take out a few gates, wooden or steel, put up a temporary pen, and then do some separation work. They will do it when they are doing the lug-tagging—putting the ear tags on. They will find a corner where two stone walls come together, and put up a temporary pen there. That happens every day of every week of the year in Cumbria, and no doubt in other sheep areas.

Those pens do not stay up permanently. The common is not fenced off. The pen provides a little sheep fank in which a farmer can work with his sheep for a day, or a couple of days. Then he will take the pen down and move on. That is happening all over Cumbria.

We have thousands of miles of stone walls in Cumbria, all built in the 19th century. Some of them look splendid, but most are teetering and a great many have fallen down. Every day of the year a bit of stone wall falls down on some Cumbrian common. If the commoners—the farmers—do not have time to fix the wall immediately, they will stick 10 ft of sheep netting or electric fencing around it. Over a period of two or three weeks they will rebuild the wall, a bit at a time, each day when they are checking the sheep. Those farmers are law-abiding people, but there is no way
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they are going to write to a national authority saying “A bit of my wall has fallen down; may I please have permission to stick up 6 ft of electric fencing?” That is just not going to happen, and those people will be breaking the law.

A wet hole may suddenly appear on a common. Again, we are not talking about a village green; we are talking about tens of thousands of acres of moorland and rough fell—some of the wildest, roughest land in the country. There are little bogs and hollows. Sheep fall in, so a farmer will try to fence off a circle around the hole, perhaps 10 or 20 ft in diameter. Given the right-to-roam provisions—which we all welcome—what is the legal obligation? If a farmer goes out one morning and finds a dead sheep in a little hole in a boggy bit of land, does he do nothing to fence it off? Some of the stone walls are very high, particularly when the banking beneath them has been undermined. If a farmer suddenly finds that a stone wall is about to fall down, does he do nothing about it? Or does he go to the farm office, eat his morning snack and start applying to the Minister for permission to fence off the bit of wall for a period? That ain’t going to happen.

Mr. Llwyd: The right hon. Gentleman is presenting a powerful argument. If a stone wall is known to be dangerous and a passer-by is injured, the farmer’s insurance policy will be worthless if he has not taken steps to do something about it.

David Maclean: The hon. Gentleman is absolutely right. In the management of thousands of acres of common, hazards are posed daily to the farmer, to his animals and to walkers every day. Anyone who walks on the Cumbrian commons will find little pockets in which fencing has been put up around hazardous areas. That is the way in which the land is managed, and, with the best will in the world, those who manage it are not going to apply for notification from the Minister.

We do not want whole swathes of common to be fenced off. We do not want to hear the excuse “The whole common is boggy: we had better fence off 1,000 acres in case someone gets stuck in it.” Of course that will not wash. But we do need a de minimis requirement. We cannot invent the details—as Opposition Members, we do not have access to all the lawyers—but I think the Minister should draw up regulations that would permit fencing for human safety purposes, animal welfare purposes and conservation purposes.

If there is a fire on the heather, it will need reseeding, and a farmer will fence off a few hundred yards for the spring, until the grass grows in the summer. That keeps the sheep off the area and gives it a chance to recover. Those are all day-to-day management practices, and they will continue whatever we say here. I just do not want those simple everyday tasks to be a crime or illegal, because farmers will not apply for licences to do what has been done for hundreds of years.

We do not want to drive a coach and horses through the Bill, and the amendment would not do that. It tries to set a minimum standard, and would allow small works for a short time for certain defined purposes. I am sorry that the Government have not tabled an
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amendment on this point, and I hope that there is scope in the Bill somewhere for de minimis regulations to set a threshold so that farmers can carry out such tasks without having to apply for permission or a licence to do so. Otherwise, the Minister will be a very busy man.

Mr. Atkinson: I echo the remarks made by my neighbour and right hon. Friend the Member for Penrith and The Border (David Maclean). Our constituencies are very similar in landscape and share a military training area. I can also vouch for how well Defence Estates manages the Otterburn training ranges. They are a first class example of good conservation.

The Minister may have an escape route, which he will need, because clause 38 is very prescriptive and could cause problems. Clause 40, however, will allow the introduction of regulations, and I hope that he will introduce regulations that will advise on this point. As my right hon. Friend has just said, the everyday activities of hill farmers would put them in breach of some of the restrictions in clause 38. As the hon. Member for Sherwood (Paddy Tipping) knows, the north Pennines are riddled with underground shafts, left by the lead mines. Indeed, one can still travel four or five miles underground in old tunnels, if one knows the way, that were carved in the rock by the lead miners. Sometimes the old shafts open up and are clearly a danger both to livestock and to people who have the right to roam in the area. It is reasonable for a farmer, therefore, to put up some fencing around it. Similarly, there is often bad weather at lambing time, so people put up temporary lambing sheds, either polytunnels, which are not very attractive, or old containers, which are even less attractive—that is farming in the hillsides. It is nonsense to suggest farmers would be in breach of this legislation if they were to do that.

The question also arises in connection with the maintenance of paths and roads. The north Pennines have a wide network of tracks, some of which get very boggy. On the more heavily used tracks, such as the Pennine way, people divert around the boggy patch and spread the path wider and wider. A farmer may dump some spare stone at that point to create some hard standing and stop the widening of the path, which damages the surrounding landscape, and protect the delicate turf.

All the examples that the House has heard today are important to day-to-day management of the land. At the moment, local farmers have to get consent if they want to put up some fencing, and the procedure is extremely cumbersome. In one case, an application to put up permanent fencing to stop animals straying on to an increasingly busy road went through the whole planning procedure and was eventually determined by a planning inspector in Bristol. That sort of thing takes months. I hope that the Minister will be able to frame regulations under clause 40 to introduce a de minimis criterion so that farmers who do sensible things in the normal course of their activities are not impeded or placed on the wrong side of the law.

Mr. Llwyd: This is an important debate. We had a similar debate in Committee, and if nothing is done to amend the clause, the Bill could come into disrepute. As the clause stands, it will impede the natural husbandry of common land and, more importantly, it
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will pose several problematic legal conundrums. I referred to one in an intervention in the remarks by the right hon. Member for Penrith and The Border (David Maclean). Clearly, no farmer could with any confidence rely on an insurance policy if there was an imminent danger that he knew of and did nothing about. The example given was to do with a stone wall that might be on the verge of collapse, but there are many others, such as to do with disused mine shafts or holes that appear in bogs, all of which are daily occurrences on the uplands.

4 pm

The hon. Member for Hexham (Mr. Atkinson) has ingeniously given the Minister what appears to be a lifeline. The point raised is important. In debate in Committee with the Minister’s predecessor—who, I might be so bold as to say, was also a reasonable man—he would not accede on this, which I could not understand because just using the words de minimis without some force behind them does not take us very far. What was said was that the offender could be investigated and taken to court and then the case would be thrown out. That is all well and good, but what about all the time, money and effort that are put into bringing that person to court before it was thrown out because it was de minimis? That is a scandalous way of looking at things. We are making law here; we are making law that will probably last for the next 50, 60 or more years.

I urge the Minister to consider the good sense of the arguments in this case. He has to do something—through regulation, or however else he might do it. Otherwise, there is a potential problem in this part of the Bill, which, as I have said, would bring it into disrepute. That would be a great shame, because I, along with other Members in all parts of the House, commend much of the Bill, but this is a flaw that we will all come to regret, as with the dangerous dogs legislation.

Barry Gardiner: This group of amendments has certainly provoked much very interesting debate and raised important questions that we must grapple with.

Amendment No. 114, tabled by the hon. Member for South-East Cambridgeshire (Mr. Paice), would exempt works on common land from the part 3 consent requirement if they are for the purposes of user safety, animal welfare or conservation, and are either urgent and necessary while a consent application is under consideration or will be on the land for not more than a limited period to be prescribed by regulations. Although I fully understand the aim behind the amendment, it would pre-empt the thorough consideration we wish to give to whether any particular types of works on common land, over and above those already described in clause 38(6), should be exempted from the normal requirement for consent under the Bill.

Clause 43 allows us—subject to the negative resolution procedure—to make such exemptions by order for a range of specific purposes; essentially, they are use of the land for access, recreation or sporting purposes, exercise of rights of common, nature conservation or heritage preservation. These grounds would between them be likely to embrace most of the practical scenarios that amendment No. 114 would address. In addition, we will have power under clause 40 to prescribe fast-track procedures for certain types of works or particular circumstances, if we conclude that that makes sense.
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During animal health crises, there are also emergency powers that may in any event override the need for consent under the Bill, and there may be other statutory powers to act in emergencies that would exempt necessary works from the consent requirement.

We intend to consult fully—I take on board the point of the hon. Member for Hexham (Mr. Atkinson)—about our approach to the use of the exemption power. It is important to be able to draw on a full range of views and experience before we make decisions on this important issue. We have already indicated that any exemptions we make by order under clause 43(1) are likely to relate to works of a minor or temporary character. Beyond that, we do not want to prejudge the issue by including further provision in the Bill about what is to be exempt.

May I just correct an impression that might have been given by the right hon. Member for Penrith and The Border (David Maclean)? There is no question that crimes would be committed. The breach of clause 38 is not an offence; it is a matter for civil enforcement through the civil courts. In the 80-odd years since the enactment of section 194 of the Law of Property Act 1925, there have been no problems with sheep fences—an issue to which one Member referred earlier. Having made those points, I hope that the hon. Member for South-East Cambridgeshire will withdraw his amendment.

Mr. Paice: The Minister thinks that the gist of my amendment is covered in the powers contained in the fast-tracking procedure and in clause 43, which deals with the power to exempt, but can he clarify one point? According to my reading of clause 43(1), the Minister will be able to exempt only

Although subsection (b) widens that to include “any land”, the fact remains that the clause refers to the carrying out of such works

Does the Minister really believe that that creates the flexibility to deal with the issues that my hon. Friends and I have been discussing this afternoon? The examples of what are to be exempted are highly specific, rather than general. It is obviously impossible to say who should erect an emergency fence to protect children from falling into a mineshaft, for example, or to specify particular works. If one tried to list the circumstances in which an emergency might arise, one would be bound to miss some because, by their very nature, such circumstances are unforeseeable. My concern is whether the Minister has sufficient flexibility in clause 43 to do what he suggests he could do.

Barry Gardiner: The hon. Gentleman puts a question that is absolutely to the point, and the answer is yes, we do believe that clause 43 will give us the flexibility that we require. But in framing subsequent regulations, we will obviously take very careful note of the view expressed by the House this afternoon, and of the potential pitfalls to which we have been alerted.

Government amendment No. 76 echoes a similar provision in clause 43(5). It enables an order to be made by the national authority, exempting certain land from the controls on works in clause 38. An order
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could be made under this amendment only in relation to land to which the controls on works under section 194 of the Law of Property Act 1925—the predecessor provision to clause 38—have already ceased to apply. So this amendment and the existing clause 43(5) merely give us the option to preserve the exemptions that are already in place, and we see that as entirely proper.

Generally, section 194 of the 1925 Act applies to land that was subject to rights of common in 1926. Where all rights of common have since been acquired under any statutory power, such as a power of compulsory purchase, section 194 will cease to apply to that land. It is in those circumstances that we would have the discretion to make an order under this amendment.

It will not surprise Members to learn that we have in mind a particular case: Warcop military training area, which is a firing range in Cumbria. The rights of common there were acquired in 2003 following a public inquiry, and the controls on works under section 194 therefore ceased to apply at the same time. There is uncertainty about Warcop’s status, and I share the concern of the Under-Secretary of State for Defence, my hon. Friend the Member for West Bromwich, East (Mr. Watson), that clause 38 could re-impose those controls. Government amendment No. 76 will enable us to address the issue at Warcop. My hon. Friend and I are committed to consulting at a later date—I give that commitment, as my hon. Friend the Member for Sherwood (Paddy Tipping) asked me to do—on how best to address the problem in the light of this amendment, so that there is no interference with the delivery of our armed forces’ training needs. It might help if I add that my Department is not aware of any other site where the circumstances would enable an order to be made using the powers conferred by this amendment.

I turn now to Government amendments Nos. 78 to 80, which deal with the National Trust. The House will recall from earlier debates that the trust was concerned about the impact of the Bill on the National Trust Acts. I have since met Fiona Reynolds, the trust’s chief executive, and am pleased to say that we have been able to reassure the trust that the arrangements for improved management of commons set out in part 2 of the Bill do not represent any practical threat to its excellent management of its very extensive common land holdings.

However, Fiona Reynolds has also pointed out that the power in clause 44(2) to amend local or personal legislation by order

may be too broad. The trust is concerned that it would allow such an order to repeal relevant powers taken by it under the National Trust Acts. Of course, that is not our intention, and the amendments that we consider necessary to those Acts are already set out in paragraphs 3 and 4 of schedule 4.

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